STATE OF WISCONSIN
IN SUPREME COURT
Appeal No. 2013AP416
PEGGY Z. COYNE, MARY BELL,
MARK W. TAYLOR, COREY OTIS,
MARIE K, STANGEL, JANE WEIDNER,
AND KRISTIN A. VOSS,
Plaintiffs-Respondents,
v.
SCOTT WALKER AND SCOTT NEITZEL,
Defendants-Appellants-Petitioners,
and
ANTHONY EVERS,
Defendant-Respondent.
____________________________________________________________
ON APPEAL FROM THE OCTOBER 30, 2012, DECISION BY THE
DANE COUNTY CIRCUIT COURT, CASE NO. 11-CV-4573,
THE HONORABLE AMY R. SMITH, PRESIDING __________________________________________________________________
AMICI CURIAE BRIEF ON BEHALF OF WISCONSIN
MANUFACTURERS & COMMERCE, METROPOLITAN
MILWAUKEE ASSOCIATION OF COMMERCE, SCHOOL
CHOICE WISCONSIN, THE HONORABLE JASON FIELDS, AND
THE HONORABLE SCOTT JENSEN IN SUPPORT OF THE
POSITION OF THE DEFENDANTS-APPELLANTS-PETITIONERS ________________________________________________________
Richard M. Esenberg, WI Bar No. 1005622
Charles J. Szafir, WI Bar No. 1088577
Brian W. McGrath, WI Bar No. 1016840
WISCONSIN INSTITUTE FOR LAW & LIBERTY
1139 E. Knapp Street
Milwaukee, WI 53202
414-727-9455
i
Table of Contents
Table of Contents ...................................................................... i
Table of Authorities .................................................................. ii
Interest of Amicus ..................................................................... 1
Argument ................................................................................... 2
I. Thompson v. Craney Should Be Overruled. .................. 2
A. Thompson Is Inconsistent with the
Language of Art. X, Section 1 of the
Wisconsin Constitution. ...................................... 6
B. Thompson Is Inconsistent with the Long-
standing Historical Interpretation of
Article X, Section 1. ............................................ 9
C. Thompson Is Inconsistent with Fortney v.
School District of West Salem. ............................ 11
Conclusion ................................................................................. 15
ii
Table of Authorities
CASES
City of Edgerton v. General Casualty Co. of Wisconsin, 184 Wis. 2d
750, 517 N.W.2d 463 (1994) .........................................................................4
Dairyland Greyhound Park v. Doyle, 2006 WI 107, 295 Wis. 2d 1,
719 N.W.2d 408 ............................................................................................7
Fortney v. School District of West Salem, 108 Wis. 2d 167, 321
N.W.2d 225 (1982) .......................................................................................11, 12
Hahn v. United States, 524 U.S. 236, 251 (1998) ..........................................4
Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108,
264 Wis. 2d 60, 665 N.W.2d 257 ..................................................................4, 5
Martinez v. DILHR, 165 Wis. 2d 687, 697, 478 N.W.2d 582, 585
(1992) ...........................................................................................................13
State v. Luedtke, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592 .....................4
State v. Sartin, 200 Wis. 2d 47, 546 N.W.2d 449 (1996) ...............................7
State ex rel Kalal v. Circuit Court of Dane County, 2004 WI 58, 271
Wis. 2d 633, 681 N.W.2d 110 .......................................................................7
Thompson v. Craney, 199 Wis. 2d 674, 546 N.W.2d 123 (1996) ...................passim
Zarder v. Humana, 2010 WI 35, ¶52, 324 Wis. 2d 325, 782 N.W.2d
682 ................................................................................................................7
WISCONSIN CONSTITUTION
Article X, §1 .................................................................................................passim
Article IV ......................................................................................................14
WISCONSIN LAWS
L. 1848, c.226 ...............................................................................................9
L. 1862, c.176 ...............................................................................................9
L. 1863, c.102 ...............................................................................................9
L. 1868, c.169 ...............................................................................................9
L. 1915, c. 497 ..............................................................................................9
L. 1939, c. 53................................................................................................9
iii
WISCONSIN ADMIN. CODE
Wis. Admin. Code § DWD 270.19 ................................................................10
Wis. Admin. Code § SPS 378 .......................................................................9
Wis. Admin. Code § Trans 300 .....................................................................10
OTHER
State Superintendent Tony Evers, Prepared Remarks to the Joint
Hearing of Select Committees on the Common Core State Standards,
Oct. 3, 2013, available at
http://www.npsd.k12.wi.us/TonyEversDPIOct2013.pdf ................................13
1
Interest of Amicus
Wisconsin Manufacturers & Commerce (WMC) is the state chamber
of commerce and is dedicated to making Wisconsin the most competitive
state in the nation. To that end, WMC is a leading advocate for education
reform. Currently, WMC has nearly 3,800 members.
The Metropolitan Milwaukee Association of Commerce (MMAC)
represents approximately 1,800 member businesses employing nearly
300,000 employees in Milwaukee, Waukesha, Washington and Ozaukee
Counties. MMAC advocates for its member businesses at the local, state
and federal levels. Its work to strengthen the state’s economy and create
jobs includes efforts to strengthen local education through advocacy for
education reform.
School Choice Wisconsin is a non-profit group that supports
expanded educational options for parents through the use of school
vouchers, charter schools, and innovative new programs centered on
parental empowerment and choice of the best educational environment for
their child.
Jason Fields is a former Democratic member of the State Assembly.
He represented most of the north side of Milwaukee from 2005-2012.
2
Today, he works in the private sector in Milwaukee and is a prominent and
engaged civic leader, deeply concerned about the quality of education in the
City of Milwaukee and throughout our state.
Scott Jensen is a former Republican member of the State Assembly
and served as Speaker of the Assembly from 1995-2002. Today, he
remains actively involved in state government and is a leader in the
education reform movement, both in Wisconsin and nationally.
The Amici have a vested interest in protecting the legislature’s
constitutional authority to reform the critical area of K-12 education. They
believe that the SPI has no constitutional right to make rules or policy. The
Amici submit this brief to urge this Court to make clear that the overly
broad statement of the SPI’s authority in Thompson v. Craney, 199 Wis. 2d
674, 546 N.W.2d 123 (1996), was dictum and does not properly interpret
Art. I, sec. 1 or, if that is not possible, to overrule Thompson.
ARGUMENT
I. Thompson v. Craney Should Be Overruled.
Concurring in Thompson v. Craney, Justices Wilcox and Steinmetz
expressed concern that the breadth of the majority’s reasoning would make
it the hard case that makes bad law. 199 Wis. 2d 674, 711, 546 N.W.2d
3
123, 139-40 (1996) (Wilcox, J., concurring). It is one thing, they thought,
for the legislature to render the office of the Superintendent of Public
Instruction (“SPI”) superfluous by stripping it of all its authority and
making it wholly unable to supervise public education. It is quite another
to say that the legislature can allocate no authority regarding public
instruction to some other officer. They worried that the majority’s rationale
(as opposed to its result) would be read to establish the SPI’s sole authority
over public instruction and would “impair[] the ability of the legislature to
improve the institution of public instruction in this state.” Id. This, in their
view, would be inconsistent with the 1902 amendment to Art. X, § 1, which
was clearly designed to “increase legislative flexibility to administer future
change in the educational system.” Id. at 701-702.
This case – the first to consider Thompson’s scope – demonstrates
that Justice Wilcox and Steinmetz were prescient. Even if one regards rule-
making as a “supervisory” power,1 Thompson is now being used to limit the
way in which the legislature can define a single aspect of that power,
notwithstanding that the power to make rules could be withheld altogether.
Thompson is now being used to invalidate legislation that neither renders
1 Amici agree with the Defendants-Appellants-Petitioners that rule-making is a delegated
legislative power and not an executive “supervisory” authority.
4
the SPI superfluous nor reduces any of his inherent authority. If Thompson
really hamstrings the legislature in this way, it should be overruled.
As this Court has explained, “stare decisis is not a mechanical
formula for adherence to the latest decision and the power of the court to
repudiate its prior rulings is unquestioned, though not often exercised.”
Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶96,
264 Wis. 2d 60, 665 N.W.2d 257. Stare decisis is not an “inexorable
command.” Id., ¶97, citing Hahn v. United States, 524 U.S. 236, 251
(1998).
In deciding whether to overrule one of its prior decisions, this Court
considers factors such as changes or developments in the law, whether the
precedent has become detrimental to coherence and consistency in the law,
and whether the prior decision is unsound in principle or unworkable in
practice. Id., ¶¶98-99; State v. Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1,
863 N.W.2d 592.
Johnson Controls, overruling City of Edgerton v. General Casualty
Co. of Wisconsin, 184 Wis. 2d 750, 517 N.W.2d 463 (1994), is instructive.
In that case, this Court pointed out the many problems with the Edgerton
rationale and noted that it had led to anomalous results, requiring and not
5
requiring coverage for environmental clean-up in circumstances that were
not really different. It concluded that “[t]he applicable rules of law
established by Edgerton are not settled, much less settled correctly.
Therefore, the errors of Edgerton . . . must be corrected by this court.”
Johnson Controls, 264 Wis. 2d at 135. The same is true here.
It is not, for example, settled law or practice that the SPI must be
superior to every other officer in the state on each and every matter related
to public education. As we shall see, there are – and always have been –
areas in which he has not and never can be. It is not settled law or practice
that, if the legislature chooses to delegate rule-making authority to the SPI,
then he must be able to assume and exercise that power without
gubernatorial check. In fact, the Governor can – and has always been able
to – block any legislative attempt to allow the SPI to make rules. The
Governor can – and has always been able to – sign or veto the SPI’s budget
and legislation affecting educational policy and structure.
The consequences of Thompson’s overly broad interpretation of the
Constitution are dire. It frustrates and will continue to frustrate the ability
of the legislature to, as L.D. Harvey, the author of the 1902 amendment to
Article X, section 1, put it “fit any exigencies that might arise at any time in
6
the future history of the state” and to “meet any demand of the people at
any time in the future in the organization of the school system.” Thompson,
199 Wis. 2d at 702 (Wilcox, J. concurring).
A. Thompson Is Inconsistent with the Language in Article
X, Section 1 of the Wisconsin Constitution.
Art. X, § 1 of the Wisconsin Constitution provides that “[t]he
supervision of public instruction shall be vested in a state superintendent
and such other officers as the legislature shall direct ….” (Emphasis
added.) Further, it says that the powers and duties of the state
superintendent and these “other officers” “shall be prescribed by law,”
i.e., established by the legislature. (Emphasis added.) There is nothing
particularly ambiguous about this language. It vests something called
“supervision” in both the SPI and “such other officers as the legislature
may direct” without distinction. Both are direct objects of the verb “to
vest.” It is up to the legislature to decide what the SPI may and may not do.
Whatever “supervisory” and other duties that the legislature chooses to
confer upon him can be shared with – or even allocated to – others.
Although the Thompson Court acknowledged that this is a “plausible”
reading of Art. X, § 1, it is actually the only plausible reading.
7
In contrast to its rule for statutory interpretation, this Court has not
required ambiguity before resorting to legislative history or subsequent
legislative enactments in interpreting constitutional language. Compare
State ex rel Kalal v. Circuit Court of Dane County, 2004 WI 58, 271 Wis.
2d 633, 681 N.W.2d 110 (statutory interpretation) with Dairyland
Greyhound Park v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408
(constitutional interpretation). Whatever the merits of that approach, the
requirement that unconstitutionality ought to be demonstrated “beyond a
reasonable doubt” ought to make cases that depart from the plain language
of the Constitution in order to invalidate an act of the legislature rare to
nonexistent.
It is not clear that the Thompson Court was required to abandon the
plain meaning of the text.2 The law at issue there arguably removed all
supervisory power from the SPI. In rejecting that legislative move, the
majority noted that the delegates to the Constitutional Convention
considered but rejected the alternative of having the SPI appointed rather
2 If so, the language which Amici urges this Court to disavow may have been dictum. See
Zarder v. Humana, 2010 WI 35, ¶52, 324 Wis. 2d 325, 782 N.W.2d 682, citing State v.
Sartin, 200 Wis. 2d 47, 546 N.W.2d 449 (1996) (noting a line of cases defining dictum as
“a statement or language expressed in a court’s opinion which extends beyond the facts in
the case and is broader than necessary and not essential to the determination of the issues
before it.”)
8
than elected. 199 Wis. 2d at 684. That history may have been relevant to a
statute which essentially replaced the SPI with an appointed board, but it
tells us nothing about whether some of whatever powers the elected SPI
given may be shared with others.
The Court noted that the delegates thought that the SPI would be a
“crucial position” and would be someone who might work to provide
“uniformity, energy and efficiency to the system.” Thompson, 199 Wis. 2d
at 688. Of course, this cannot mean that the SPI has inherent authority to
make educational policy – all agree that power rests with the legislature –
but it might mean that there is some diminution in the authority of the SPI
or some transfer of his authority to others such that no supervisory authority
is vested in him. But that the SPI must have a “crucial position” does not
mean that no one else can have greater authority in anything related to
public instruction or any ability to check the power that he is given.
Likewise, that the officers referred to in the Constitution were not
created in the first enactment after passage of Art. X, section 1 or its
amendment in 1902 does not mean that they could never be. That the
legislature declines to exercise a discretionary power does not imply the
absence of that power.
9
B. Thompson Is Inconsistent with the Longstanding
Historical Interpretation of Article X, Section 1.
The legislature has “prescribed” the duties of the SPI throughout the
state’s history. It has added to and subtracted from the SPI’s legal authority
as conditions and legislative judgment required. For example, in 1915 the
legislature created a State Board of Education, which managed and
allocated the finances of the state’s public educational activities. L. 1915,
c. 497. Today, the SPI has that power.
In 1848, the legislature gave town superintendents, not the SPI, the
exclusive power to license school teachers. L. 1848, 226. Between 1862
and 1868, county and town supervisors shared licensing certification. L.
1862, c. 176; L. 1863, c. 102; L. 1868, c. 169. Seventy-three years later, in
1939, the legislature gave this duty to the SPI. L. 1939, c. 53.
Today, the SPI is not the sole officer who can promulgate rules
relating to public instruction. For example:
o The Department of Safety and Professional Services writes the
rules relating to school building codes. Wis. Admin. Code § SPS
378.
o The Department of Workforce Development writes rules relating
to students working at their school during school hours. Wis.
Admin. Code § DWD 270.19.
10
o The Department of Transportation writes rules relating to school
buses and the public transportation of students. Wis. Admin.
Code § Trans 300.
The legislature often reserves certain responsibilities to local
superintendents and school boards. The SPI cannot countermand what
these “other officers” do. Indeed, the SPI does not even act free from
interference within the executive branch. The Governor proposes – and
may veto – his budget. The Governor may sign into law legislation that the
SPI opposes and veto legislation that he has proposed or supports. Indeed,
as noted earlier, the Governor could veto any grant of rule-making authority
to the SPI. If he can do that without constitutional injury, it is hard to see
how Act 21, allowing him to veto rules (in effect) could be
unconstitutional.
Not only is the breadth of Thompson’s rationale inconsistent with
longstanding practice, it has now proven, as Justices Wilcox and Steinmetz
feared, to unreasonably limit the legislature’s ability to “improve the
institution of public instruction.” Accountability of schools is currently a
significant issue with many arguing that the SPI, elected in low turn-out
spring elections, is overly solicitous of the interests of the teachers’ unions
which dominate such elections. Whatever the merits of that criticism,
11
assume that the legislature decides to place the formulation of those
standards under the aegis of a board in which all stakeholders are
represented or permits local superintendents to adopt any measure approved
by the University of Wisconsin’s Value-Added Research Center. Such a
move would hardly remove the SPI from a crucial role in the supervision of
public instruction but might be prohibited under Thompson which brooks
no administrative check on the SPI’s power and decrees that not a jot or
tittle of his power may be shared with or moved to anyone else. That
result, however, flies in the face of the language in Art. X, Section 1 and
the long-standing historical interpretation of that language which has seen
the legislature make numerous additions to and subtractions from the
powers of the SPI.
C. Thompson Is Inconsistent with Fortney v. School
District of West Salem.
In Fortney v. School District of West Salem, 108 Wis. 2d 167, 321
N.W.2d 225 (1982), this Court emphasized the plenary authority of the
legislature to define the powers of the SPI and “other officers:”
Public instruction and its governance had no long-standing
common law history at the time the Wisconsin Constitution
was enacted. Furthermore, Article X, section 1, explicitly
provides that the powers and duties of the school
superintendent and other officers charged by the legislature
12
with governing school systems “shall be prescribed by law.”
Because the constitution explicitly authorized the legislature
to set the powers and duties of public instruction officers,
Article X, section 1 confers no more authority upon those
officers than that delineated by statute.
Id. at 182.
This, of course, is perfectly consistent with the language of Art. X, §
1, but inconsistent with the decision in Thompson. In Thompson the Court
tried to remain consistent with Fortney by saying that under Fortney the
legislature may take away power from the SPI but under Thompson it may
not give that power to anyone else. Thompson, 199 Wis. 2d at 699-700.
But that dichotomy has now been shown to be unsound in principle and
unworkable in practice.
Under this Thompson/Fortney dichotomy, the legislature could
completely take away the SPI’s power to make rules (as previously granted
by the legislature) but it cannot make that power subject to limited veto
power by the Governor (even though the Governor could have vetoed the
rule making power in the first instance and some rule-making regarding
public education has been given to others). The legislature could override
the SPI and adopt accountability standards that the SPI opposes, but could
not create a board to do so unless the SPI controlled it. The legislature
13
could take away the SPI’s power to accredit teachers but could not grant
that power to anyone else (as it has in the past). The legislature could
create a recovery school district for schools that are failing under the
current supervision of the SPI but only if it gives authority over that school
district to the SPI whose failure it seeks to correct. The SPI could even
claim – and apparently has – that he has the authority to unilaterally adopt
Common Core standards for the State without regard to the desires,
decisions and constitutional power of the legislature.3
The problem arguably extends beyond education. As more fully
developed in the Defendants-Appellants-Petitioners’ Brief, rule-making is a
“quasi-legislative” function in which the SPI (or other agency) is
empowered to engage in what comes very close to law-making. It is
policy-making, which is an exclusively legislative function. See Martinez
v. DILHR, 165 Wis. 2d 687, 697, 478 N.W.2d 582, 585 (1992) (stating that
rule-making authority is derived solely from delegation by the legislature).
The SPI has no inherent rule-making authority. The historical record is
clear that, except for a few isolated and very specific legislative grants of
authority, the SPI never had rule-making power until after the adoption of
3 State Superintendent Tony Evers, Prepared Remarks to the Joint Hearing of Select
Committees on the Common Core State Standards, Oct. 3, 2013, available at
http://www.npsd.k12.wi.us/TonyEversDPIOct2013.pdf.
14
the Administrative Procedure Act in 1943. Today, he does not have rule-
making authority other than when – and to the extent – the legislature gives
it to him.
If the fact that the SPI has some other constitutional authority means
that the legislature, in delegating rule-making authority to him, cannot
choose to have that delegated authority checked by any other officer – if he
need not accept the bitter with the sweet – Thompson calls into question the
legislature’s ability to limit the rule-making authority of other constitutional
officers, such as the Attorney General or Secretary of State – each of whom
presumably has some core constitutional authority. It is also directly
inconsistent with the ability of the Governor to veto the conferral of rule-
making authority on the SPI in the first place.
That is not a workable interpretation of Article X, Section 1 or a
workable interpretation of the legislature’s authority under Article IV. But
it is where Thompson’s overly expansive view of the powers of the SPI has
taken us. Thompson should be overruled.